Bricklayers & Allied Craftworkers Local No. 3 New York, AFL-CIO (Rochester Chapter) et al v. Precision Concrete & Masonry, Inc. et al

Filing 10

DECISION AND ORDER DENYING WITHOUT PREJUDICE Plaintiffs' 8 Request for Default. Signed by Hon. Frank P. Geraci, Jr. on 8/28/18. (KAJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRICKLAYERS & ALLIED CRAFTWORKERS
LOCAL NO. 3, NEW YORK, AFL-CIO
(ROCHESTER CHAPTER), ET AL.,
Plaintiffs,
Case # 16-CV-6035-FPG
v.
DECISION AND ORDER
PRECISION CONCRETE AND
MASONRY, INC., ET AL.,
Defendants.

INTRODUCTION
Plaintiff trustees of various union pension, welfare, annuity, and training funds
(“Plaintiffs”) bring this Employee Retirement Income Security Act of 1974 (“ERISA”) action
against their employer, Precision Concrete and Masonry, Inc. (“Defendant”), and Precision’s
Principle Officer, Darren Thomas, with respect to delinquent contributions due to said funds under
a collective bargaining agreement (“CBA”). Plaintiffs also assert a breach of contract claim, a
claim under New York State Finance Law § 137, and a request for an injunction. See ECF No. 1.
On February 25, 2016, the Clerk of Court entered default against Defendants after they failed to
respond to Plaintiffs’ Complaint. See ECF No. 5. After Plaintiffs failed to take further action, the
Court ordered Plaintiffs on December 22, 2016 to show cause as to why their case should not be
dismissed for failure to prosecute. ECF No. 7. Plaintiffs responded on January 5, 2017 by
requesting the Clerk of Court to enter default judgment for a sum certain under Federal Rule of
Civil Procedure 55(b)(1). ECF No. 8. For the reasons stated below, Plaintiffs’ request is DENIED
WITHOUT PREJUDICE.

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BACKGROUND 1
According to the Complaint, Plaintiff Anthony DiPerna is the President of the union
Bricklayers & Allied Craftworkers Local No. 3 New York, AFL-CIO (Rochester Chapter). The
union maintained a Pension Fund, a Welfare Fund, an Annuity Fund, and a Joint Apprenticeship
and Training Committee, all of which were multiemployer employee benefit plans under ERISA.
On November 28, 2011, Defendants signed a CBA with the union that bound them to the terms
and obligations of a multiemployer CBA with the union and signatory employer associations. The
CBA required Defendants to submit monthly reports of union members’ hours worked, known as
remittance reports, to the funds and to make payments for fringe benefits to the Plaintiffs for each
hour of covered work performed.
Starting in October 2015, Defendants served as a contractor on a public improvement
project in Rochester, New York known as the “Robert Duffy School,” where they employed union
members under a project labor agreement. For the duration of the project, Defendants violated the
CBA by failing to make fringe benefit contributions to the funds for each hour each union member
employee worked for the Defendants, neglecting to submit remittance reports, refusing to pay late
fees on the delinquent contributions, and failing to pay employees’ union dues to the union.
Defendants also breached the CBA by failing to make fringe benefit and other contributions to the
funds for each hour each union member employee worked for the Defendants. Additionally, they
failed to pay interest fees on late contributions to the funds, also in violation of the CBA. Because
Defendants failed to provide remittance reports, Plaintiffs admit that they do not know how many

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The following allegations are taken from Plaintiff’s Complaint (ECF No. 1) unless otherwise noted and are deemed
admitted due to Defendants’ default. See In re Indus. Diamonds Antitrust Litig., 119 F. Supp. 2d 418, 420 (S.D.N.Y.
2000) (“[A] default constitutes an admission of all the facts ‘well pleaded’ in the complaint . . .”).

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hours its members worked for Defendants, and that Defendants owe an “unknown amount, to be
determined through litigation.” ECF No. 1 at 9.
DISCUSSION
I.

Legal Standard
The Court may enter a default judgment against a party that fails to defend an action

brought against it, and the failure has been “shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a).
When the Court determines that a defendant is in default, it should draw all reasonable inferences
in favor of the non-defaulting party. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.
1981). A defendant’s default is therefore “an admission of all well-pleaded allegations against the
defaulting party.” Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 246 (2d Cir. 2004).
It is not, however, an admission of damages. Au Bon Pain, 633 F.2d at 65. Damages must instead
be “established by proof unless the amount [of damages] is liquidated or susceptible of
mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974); see also Monge v.
Portofino Ristorante, 751 F. Supp. 2d 789, 795 (D. Md. 2010) (“[O]n default judgment, the Court
may only award damages without a hearing if the record supports the damages requested.”). These
easily-calculated damages are referred to as damages for a “sum certain,” and the clerk of court
“must enter judgment for that amount and costs against a defendant who has been defaulted” so
long as the plaintiff submits an “affidavit showing the amount due.” Fed. R. Civ. P. 55(b)(1).
A sum is not “certain” simply because the plaintiff requests a “specific amount.” Wright et
al., 10A Fed. Prac. & Proc. Civ. § 2683 (4th ed.); see also KPS & Assocs., Inc. v. Designs by FMC,
Inc., 318 F.3d 1, 20 n.9 (1st Cir. 2003) (“Neither the fact that the complaint identifies a purported
aggregate total, nor the fact that the affidavit attests to such a sum, automatically converts
[plaintiff’s] claim into a ‘sum certain.’”). Instead, “a claim is not a sum certain unless there is no

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doubt as to the amount to which a plaintiff is entitled as a result of the defendant's default.” KPS,
318 F.3d at 1. Typical “sum certain” claims include “actions on money judgments, negotiable
instruments, or similar actions where the damages sought can be determined without resort to
extrinsic proof.” CSXT Intermodal, Inc. v. Mercury Cartage, LLC, 271 F.R.D. 400, 401 (D. Me.
2010).
If a claim is not for a sum certain, the plaintiff must apply to the court for entry of default
judgement under Rule 55(b)(2). Priestley v. Headminder, Inc., 647 F.3d 497, 504-05 (2d. Cir.
2011). The reviewing court must then “ensure that there is a basis for the damages specified in a
default judgment,” and, if necessary, “make the determination through a hearing.” Fustok v.
Conticommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). In all cases, the burden is on the
plaintiff to establish its entitlement to damages. See Nationstar Mortg. LLC v. Atanas, 285 F. Supp.
3d 618, 626 (W.D.N.Y. 2018).
DISCUSSION
Based on the current record, the damages Plaintiffs seek to recover are not for a sum certain
and are thus ill-suited for resolution via Rule 55(b)(1). Plaintiffs’ Affirmation in Support of
Request for Default Judgment and Statement of Amount Due seeks $10,029.30 in total damages,
which includes $4,577.23 in unpaid trust fund contributions, $377.62 from 11 months of accrued
9 percent statutory interest pursuant to the CBA and trust documents, 20 percent liquidated
damages totaling $915.14 pursuant to the CBA and trust documents, and $4,159 in attorney’s fees.
ECF No. 8-1 at 2. Plaintiffs demonstrate to the Court how they arrived at the aggregate total of
damages they seek, but they leave the Court almost entirely in the dark as to how they calculated
any of the four component damages.

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The request for $4,577.23 in unpaid trust fund contributions is the most problematic aspect
of Plaintiffs’ Affirmation. The Complaint explicitly conceded that because Defendants failed to
provide remittance reports, Plaintiffs do “not presently know how many hours were worked by its
members for Defendants” and needed 2 to “determine[] through litigation” Defendants’ liability for
late contributions. ECF No. 1 at 9. In other words, the amount of unpaid trust fund contributions
was anything but a “sum certain.” Now, presumably through estimation, Plaintiffs reached the
precise figure of $4,577.23, but have not given the Court any documentation or other insight
establishing how they calculated that amount.
Plaintiffs’ requests for interest on delinquent trust fund contributions and liquidated
damages are similarly problematic. While Plaintiffs affirm that interest rates and liquidated
damages are specified in the CBA and trust documents, Plaintiffs have only shared the signatory
page of the CBA with the Court, ECF No. 1 at 19, which does not substantiate any of Plaintiffs’
late fees or liquidated damages calculations. They also did not provide the Court with any of the
trust documents that they repeatedly reference. Additionally, the late fee and liquidated damages
calculations are flawed because they rely on the unsubstantiated request for $4,577.23. See Int’l
Bhd. of Elec. Workers Local No. 43 Pension, Annuity, & Health & Welfare Funds v. Meacham
Elec. Contractors, Inc., No. 5:05-CV-754 (NAM/GHL), 2006 WL 3096486 at *2 (N.D.N.Y. Oct.
27, 2006) (“Even assuming that interest and liquidated damages may be ascertained through
mathematical calculation, they depend on the amount of contributions and deductions defendants
failed to remit, of which there is no evidence. . .”).

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The Court notes that there is nothing improper about the Complaint’s concession, as “ERISA plaintiffs are often
unable to specify their damages in their initial pleadings, especially in cases in which they seek to compel an audit or
recover continually accruing unpaid contributions.” Rochester Laborers’ Welfare-S.U.B. Fund by Brown v. Structural
Remediation Servs., Inc., No. 15-CV-6171 (CJS), 2017 WL 3392585, at *3 (W.D.N.Y. Aug. 8, 2017).

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Other Second Circuit caselaw illustrates the deficiencies in Plaintiffs’ current request for
default. In Trustees of I.B.E.W. Local Union No. 488 Pension Fund v. Norland Electric, Inc., the
U.S. District Court for the District of Connecticut entered default on an ERISA claim where, as in
this case, plaintiff trustees of various funds sought to recover delinquent contributions due under
a CBA and requested default for a sum certain. No. 3:11-CV-709 (CSH), ECF No. 25 at 18 (D.
Conn. Feb. 19, 2015). (FYI: not available in westlaw or lexis but relied on and discussed in
subsequent opinions) Specifically, the plaintiffs sought $44,387.66 in unpaid contributions for
June to December 2010. Id. at 7. The court granted the plaintiffs’ request after determining that
the plaintiffs had submitted sufficient documentation supporting their request for damages. The
plaintiffs’ documents included complete copies of a CBA covering the years 2007 to 2010,
monthly remittance reports, and trust fund documents that outlined the funds’ policies, including
those pertaining to interest rates on delinquent contributions and liquidated damages. Id. at 8.
The court rejected the plaintiffs’ request for $19,023.27 in unpaid contributions for January
through March 2011, which, unlike the plaintiffs’ claim for $44,387.66, was not supported by
evidence. Although the court determined that the plaintiffs’ request was based on a “reasonable
estimate,” it determined that “absent documentation regarding unpaid contributions for the three
months in 2011,” the requested $19,023.37 was “not actually a sum certain.” Id. at 7.
After an exhaustive search of Second Circuit caselaw, this Court found only one other
analogous case where the court awarded a “sum certain” to plaintiffs under Rule 55(b)(1). In that
case, the U.S. District Court for the Eastern District of New York granted plaintiffs’ Rule 55(b)(1)
request after reviewing an audit. See Gesualdi v. Giacomelli Tile Inc., No. 09-CV-711 (JS), 2010
WL 1049262, at *1 (E.D.N.Y. Mar. 18, 2010). In all other cases, the plaintiffs requested a default
judgment under Rule 55(b)(2) and were successful only if they thoroughly corroborated their

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entitlement to damages with evidence. See, e.g., Finkel v. Universal Elec. Corp., 970 F. Supp. 2d
108, 121-131 (E.D.N.Y. 2013).
Unlike the abovementioned plaintiffs in Norland, Gesualdi, and Finkel, based on the
current record, Plaintiffs have not provided any evidence to ensure the Court that there is a “basis
for the damages specified” in their request for a default judgment. Fustok, 873. F.2d at 40. Like
the Norland plaintiffs’ failed claim for $19,023.27, Plaintiffs’ claim for $44,387.66 is perhaps a
reasonable estimate of unpaid contributions. As the Norland court determined, however, a
reasonable estimate is a far cry from a sum certain. Even if Plaintiffs had instead requested a
default judgment under Rule 55(b)(2), without a hearing, the Court would have to deny their
request for failure to establish a sufficient basis for damages. See id.
Additionally, Plaintiffs’ request for attorney’s fees is inadequate. Plaintiffs ask for $4,159
in attorney’s fees and costs but fail to support their claim with “contemporaneous time records that
describe with specificity, by attorney, the nature of the work done, the hours expended, and the
dates on which the work was performed.” Cruz v. Local Union No. 3 of the IBEW, 34 F.3d 1148,
1160-61 (2d Cir.1994).
Finally, there are some differences between the initial Complaint in this case and the
current Request for Entry of Default Judgment that merit clarification. The Complaint asks the
Court to “enjoin Defendants from further violations of law and contract” and asserts a breach of
contract claim based on defendants’ “failure to pay dues” in violation of the CBA. ECF No. 1 at
11, 12. Plaintiffs did not mention the injunction in their Request for Default Judgment, likely
because they are aware that “an injunction is not a ‘sum certain,’” so it is not the proper subject of
a Rule 55(b)(1) request. See Northland Ins. Co. v. Cailu Title Corp., 204 F.R.D. 327, 329 (W.D.
Mi. 2000). In addition, ERISA preempts the Plaintiffs’ common law breach of contract claim. See

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Plumbing Indus. Bd., Plumbing Local Union No. 1 v. L & L Masons, Inc., 927 F. Supp. 645, 649
(S.D.N.Y. 1996) (“In general, a party may not enforce an obligation that arises under ERISA
through imposition of a common law contract claim, for such a common law claim ‘relates to’ an
employee benefit plan.”). Accordingly, Plaintiffs’ breach of contract claim is not a “legitimate
cause of action.” In re Indus. Diamonds Antitrust Litig., 119 F. Supp. 2d 418, 420 (S.D.N.Y. 2000)
(“Even after the default, however, it remains for the court to consider whether the unchallenged
facts constitute a legitimate cause of action, since a party in default does not admit mere
conclusions of law.”). Plaintiffs’ Request for Default does not mention the breach of contract
claim, so perhaps they have abandoned that claim, but in any event, it is invalid.
CONCLUSION
For the reasons stated, Plaintiffs’ Request for Default Judgment under Rule 55 (ECF No.
8) is DENIED WITHOUT PREJUDICE. Plaintiffs have until September 28, 2018 to file a new
Rule 55 request with proper documentation.

IT IS SO ORDERED.
Dated: August 28, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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